Question: Do you see today’s Romania different from what it used to be before 1989? From this perspective, can you discern between pre-1989 and post-1989 magistracies?

Mihai-Răzvan Ungureanu: I do not think that the legal framework according to which a magistrate judges or within the boundaries of which he or she is confined in his or her rulings can define the line between the substance of the activity conducted by this professional body before and after 1989. Romania has always enjoyed a community of professionals dedicated to interpreting and implementing laws, irrespective of the normative political objectives of the society. I think this is the state that should be called normality, where the political factor, no matter what the ideological regime shaping it might be, is in charge of identifying and regulating those aspects in the citadel’s life that it sees as important for our correct running as individuals – part of a social system, whereas judges are called to oversee the respect of the issued regulations. I am not trying to validate the ethics of the laws underpinning the Romanian justice before 1989. But I believe that we do not have to blame the judges for the undemocratic contents of some of the laws from the former regime or for how the act of justice was organized.

But I do believe that 1989 was a turning point in strengthening the professional identity and ensuring the legal guarantees for the impartial running of the judicial power. The creation of the specific professional training and organization bodies, such as the National Institute of Magistracy and the Magistracy Superior Council, came as an answer to a still present social imperative: the need to benefit from the services of a strong and educated professional body that is sufficiently mature to self-govern and admit the democratic boundaries of this practice. The professional independence guarantees offered to the judicial system were not a fad of the post-revolutionary effervescence, but an imperative of the democratic society.

Question: Should people turn a blind eye on some magistrates‘ collaborating with the Securitate, given their experience and competence (it is well-known that a good specialist takes years to form) or should they be exposed and cast out from their profession? Is the solution adopted in Eastern Germany, where after the fall of the Wall and the reunification, all judges from the communist era were removed, the best one?

Mihai-Răzvan Ungureanu: I do not think we are allowed, as people who have lived together the same history, to sew the scarlet letter on an entire professional body just because they were unlucky enough to work during a certain historical era or under a certain political regime. Just as the act of justice is made according to the peculiarities of each case, I consider that the potential involvement of a judge in political police activities should be analysed and, where the case might be, it should be sanctioned. This is how I understand the philosophy that underpins that Romanian law proper: accountability based on individual guilt for proven acts against the citizen’s rights and freedoms. The Romanian judges showed wisdom when they decided not to allow a punitive process based on completely alleged collective accountability of an entire professional category.

Question: Do you consider that the political power still exerts, in Romania or elsewhere, influence or control on magistrates? How? Through what levers?

Mihai-Răzvan Ungureanu: The state authorities who are constitutionally authorised to run the country have only one means of political expression in relation with the judges: the regulatory policy, which expresses the right of the lawmaker to decide on how to protect the society’s values. In a democratic state, there is no other form of interaction between the political factor and the judicial authority. The construction of the judicial system in the last twenty years has largely eliminated the legal, administrative, or logistical levers that could turn a judge dependent on anything out of the limits of the law and of his own conscience. Only one thing that no law can regulate remains: the way in which each of us, judge or not, morally aligns with the deontological paradigms of our professions; the way in which we understand to build and protect the dignity of our own conduct. And this is how we return to the self-governance that I was addressing earlier and which fleshes out the principle of the judicial power independence. This independence comes along with an implicit correlative: the magistrates’ responsibility to denounce on their own any attempt of the political factor to influence or control them.

Question: If you had to appear before a law court in Romania in order to protect one of your rights, would you trust the system, in general, and the judge, in particular? Is there a difference between what magistrates should be and what they really are? What do you think the members of this professional community should do to consolidate their independence and to become more trustworthy in the act of justice? How should a judge behave? Has the ideal judge been born?

Mihai-Răzvan Ungureanu: If by “ideal judge” we mean the magistrate who “serves justice” competently and equidistantly, then I want to believe that the Romanian judicial system is made up, first of all, of ideal judges. I do not think that litigants look for a philosophical ideal in court. Once they have come there, they reserve the right to be pragmatic: they want to be treated with respect by a professional judge whose decisions should only obey the law and his or her own conscience and who would offer the litigant a motivated solution in a short time. These are natural requests for the result of the judicial activity anywhere in the world, as well as measurement units for trust in the judicial system.

But the issue of the trust in the judicial activity, a present concern in the public discourse, indicates a misunderstanding that should be cleared up even by those targeted by this rhetoric: the overlap of trust in the judicial system and trust in the legislative system. Judges interpret and implement the law, they do not formulate it. Nor do they issue their own rules of procedure which govern their activity and which have been criticised for so many years for their slow pace.

This is why I do not think that the solutions to increase people’s trust in the act of justice can come from one single direction, not to mention that it is unfair to place all responsibility on the shoulders of only one power of the Romanian state. I think it is time, after two decades in which the Romanian judicial system has been resettling, along with this process’s failures and victories, we approached more responsibly the part that each of us should play in the endeavour to improve the Romanian act of justice.